Human Rights Watch

The Bush administration introduced legislation yesterday that would recreate a system of fatally flawed military commissions akin to those that the U.S. Supreme Court struck down Hamdan v. Rumsfeld. The legislation would decriminalize the use of cruel, inhuman and degrading treatment by civilian interrogators. If Congress were to pass this legislation into law, public attention could turn to the unfairness of the proceedings rather than to the alleged crimes of the suspect.

Moreover, the legislation would decriminalize the use of cruel, inhuman and degrading treatment by civilian interrogators. This would rewrite the standards of basic humane treatment that have guided U.S. policy since the Second World War.

“The last thing the U.S. needs is for public attention to focus on the unfairness of Khalid Sheikh Mohammad’s trial rather than the seriousness of his alleged crimes,” said Jennifer Daskal, U.S. advocacy director at Human Rights Watch. “The U.S. should be seeking justice – not preordained convictions.”

Yesterday, the Bush administration announced that it had transferred 14 CIA detainees –including Khalid Sheikh Mohammad – to Guantánamo Bay, and said it planned to prosecute them in military commissions. But the legislation proposed by the administration and introduced in Congress today violates almost all of the basic norms of fair justice highlighted by the Supreme Court in Hamdan. If passed into law, a defendant could be convicted and executed based on coerced evidence that he has never seen. A case could go forward based exclusively on second- or third-hand summaries of evidence, even if the evidence was obtained through the use of cruel and inhuman interrogation techniques. And the only automatic right of appeal would be to an entirely new appellate court of military commission review, with all of the judges appointed by and under the chain of command of the Secretary of Defense.

The administration has claimed that these provisions are needed to protect legitimate intelligence sources and methods, and also to deal with the difficulty of gathering evidence during an armed conflict. But, as leading military lawyers have testified before Congress, the existing court-martial system provides ample leeway to protect military operations and intelligence gathering. In recent hearings before the Senate Armed Services Committee and Senate Judiciary Committee, each committee endorsed the view that it would be unfair to convict a defendant based on evidence that they have never seen, that commissions should not rely on coerced evidence, and that the court-martial system – with its deep reservoir of rules and precedents – should serve as the starting point for any military commissions authorized by Congress.

In contrast, the administration’s proposal would create an entirely new court system that appears designed to hide its use of torture and other interrogation abuses. To permit CIA interrogators to testify about what has been learned from witnesses during interrogation sessions – as the legislation would allow – is to permit the administration to cover up its use of torture and coercion. A detainee could face conviction and even execution on the basis of such secondhand summaries of a witness’s statements, despite having no opportunity to question the witness about the voluntariness or accuracy of any statement. And in some cases, the defendant could be prevented from seeing even these secondhand summaries. If Congress were to pass this legislation into law, public attention could turn to the unfairness of the proceedings rather than to the alleged crimes of the suspect.

Under the proposed law, the administration could potentially subject any non-citizen accused of supporting terrorist activity, anywhere in the world, to this second-class system of justice. This is because there is no requirement that those brought before the proposed military commission have any relationship to an actual armed conflict as commonly understood. Under this legislation, even the proverbial old lady in Switzerland who gave money to a charitable arm of a terrorist organization could be declared an “unlawful enemy combatant,” placed in military custody, and tried by a military commission for providing “material support to terrorism.”

“The jurisdictional reach of these proposed commissions is breathtaking,” said Daskal. “The administration is asking Congress to rubberstamp a law that would undermine some of our most basic criminal justice rights.”

The legislation would also decriminalize cruel, inhuman and degrading treatment of detainees, thereby immunizing from prosecution civilian administration officials and interrogators who approved and engaged in practices such as the use of snarling dogs, forced nudity and sexual humiliation, extended sleep deprivation, and prolonged use of painful stress positions. It does this by amending the War Crimes Act, limiting the list of prosecutable acts to an extremely narrowly drawn list.

In fact, the administration’s definition of prohibited “cruel or inhuman treatment” is almost identical to its prohibition against “torture,” meaning that cruel and inhuman conduct that does not amount to the administration’s narrow definition of torture will no longer be prosecutable offenses. At hearings before the United Nations Committee against Torture in May, U.S. officials even refused to concede that waterboarding – a form of mock drowning – constitutes torture.

Moreover, the legislation would abandon the absolute standards of humane treatment required by Common Article 3 of the Geneva Conventions and replace them with a balancing test, under which the definition of inhumane treatment would vary according to the perceived need of the detaining power. The legislation would tie the definition of the relevant terms in Common Article 3 to the definition of “cruel, inhuman and degrading” under the Detainee Treatment Act of 2005. The administration has interpreted this as imposing a relative, rather than absolute, standard of humane treatment, arguing that virtually any form of inhumane treatment might be acceptable if national security demands obtaining information from a detainee.

Common Article 3, on the other hand, has always been interpreted by the United States and the international community as establishing an absolute standard, providing a bright-line rule that protects all combatants and civilians, including U.S. soldiers. The U.S. military has respected that standard for some 60 years, including in the midst of waging wars and serious threats to national security. The proposed rewriting of the Geneva Conventions would make the United States the first country in the world to attempt formally to limit this minimum standard of humane treatment, and would provide an example that other countries would be all too willing to mimic.

“This legislation would water down humane treatment standards that also serve to protect U.S. soldiers,” said Daskal. “This is an attempt to protect civilian officials and interrogators at the expense of U.S. soldiers.”

In a separate development yesterday, the Department of Defense issued its new Army Field Manual on intelligence interrogation, specifying in detail the list of approved and disallowed interrogation techniques. Rather than continue to criminalize mistreatment that the Defense Department has itself outlawed, the proposed redefinition of Common Article 3 appears to be targeted at civilian officials and CIA interrogators – serving to protect those who approve or engage in cruel and inhumane interrogation techniques prohibited by the military. This would protect not only officials who authorized abusive interrogation in the past, but also those who might circumvent the new military guidelines by authorizing the CIA to detain and abuse suspects in the future.